A A
B DCCC 823/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 823 OF 2015
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F HKSAR F
v.
G G
LAN Zhenwen (D1)
LAN Zhengfeng (D2)
H H
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Before: HH Judge E. Yip
J J
Date: 10th March 2016 at 11:28 am
K
Present: Mr Andrew RAFFELL, Counsel on Fiat, for HKSAR K
Mr LO Ho Fai, of M/s Tang Wong & Chow assigned by DLA
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for D1
M Mr FONG Hon Kuen Stephen, instructed by M/s Edward Lau, M
Wong & Lou assigned by DLA for D2
N N
Offence: [1] Being the captain of a ship with persons on board seeking
O to land unlawfully in Hong Kong (船隻上載有尋求在香港 O
非法入境的人時身為船長)
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[2] Aiding and abetting the captain of a ship with persons on
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board seeking to land unlawfully in Hong Kong (船隻上載有
R 尋求在香港非法入境的人時協助及教唆船長) R
[3] Endangering the safety of others at sea (危害他人在海上
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的安全)
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B ---------------------------- B
Reasons for Sentence
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D Charges D
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1. D1 and D2 plead guilty to the respective charges as follows:
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G (1) 1st Charge, against D1, for being the captain of a ship with G
persons on board seeking to land unlawfully in Hong
H H
Kong, contrary to s. 39 of the Immigration Ordinance
I (Cap. 115); I
(2) 2nd Charge, against D2, for aiding and abetting D1 the
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captain of a ship in D1’s commission of the 1st Charge,
K contrary to s. 39 of the Immigration Ordinance (Cap. 115) K
and s. 89 of the Criminal Procedure Ordinance (Cap.
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221);
M (3) 3rd Charge, against D1, for endangering the safety of M
others at sea, contrary to s. 72 of the Shipping and Port
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Control Ordinance (Cap. 313).
O O
Facts
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Q 2. At 0542 h on 16 August 2015, the police stopped an Q
R
unregistered boat within Hong Kong waters near Lung Kwu Chau. D1 was R
the coxswain of the boat and responsible for its control. D2 and 7 other
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South Asian males were on board. The 7 South Asian males were seeking
T
to land in Hong Kong without authorization from the Director of T
Immigration.
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B 3. Under caution, D1 said as follows: B
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(1) He was a fisherman and knew how to control and sail a
D boat; D
(2) He was recruited by a male “Ah Kat” to control the boat;
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(3) On the day in question at 0300 h, upon the instructions of
F Ah Kat, he sailed the boat to Shenzhen; F
(4) He controlled the boat and was responsible for conveying
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the 7 South Asian males to Hong Kong;
H (5) It was the first time he worked for Ah Kat; H
(6) He would receive RMB1,000 as reward.
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J 4. D2’s role was to bring the 7 South Asian males to board the J
boat in Shenzhen. He would act as a look out in the trip to Hong Kong.
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Under caution, he said that a boss had recruited him to lead the way to
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Hong Kong. In a subsequent video-recorded interview, he added that he
M
would receive RMB1,000 as reward. M
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5. A ship inspector inspected the boat and found it unseaworthy
O due to the following problems: O
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(1) The main hull structure was in poor condition;
Q (2) There were no fire fighting appliances; Q
(3) There were only 5 life-jackets, none in a proper working
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condition for safety purposes;
S (4) There was no navigation light as required for night S
operation.
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B Personal background and mitigation B
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6. D1 is now aged 36, a Mainland China resident. He was both a
D farmer and a fisherman. His family consisted of his mother, his wife and D
their 4-year-old daughter. He was the sole breadwinner. His wife suffered
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from thalassemia whereas he suffered from chronic back pain. These were
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pre-existing conditions before he committed the present offences.
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7. D2 is now aged 28, a Mainland China resident. He was a
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factory worker. His family consisted of his mother and an older brother.
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Statutory maximum imprisonment
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K 8. For the offence of being, or aiding and abetting, the captain of K
a ship with persons on board seeking to land unlawfully in Hong Kong,
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contrary to s. 39 of the Immigration Ordinance (Cap. 115), the maximum
M sentence is 7 years on conviction on indictment. M
N N
9. For the offence of endangering the safety of others at sea,
O contrary to s. 72 of the Shipping and Port Control Ordinance (Cap. 313), O
the maximum sentence is 4 years on conviction on indictment.
P P
Q Case for comparison Q
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10. Mr. Lo, solicitor for D1, and Mr. Fong, counsel for D2, both
S refer me to the case of HKSAR v Ding Qijing CACC 75/2014. The charges S
and facts pertaining to the boat captain there were on all fours with our
T T
present case except that it did not feature anyone aiding and abetting the
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B captain. The defendant pleaded guilty to both charges. The judge imposed B
an overall sentence of 44 months. The Court of Appeal reduced the overall
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sentence from 44 months to 40 months. It comprised 38 months for the 1 st
D charge and 2 months made consecutive between the two charges. That was D
achieved by lowering the starting point for the 1st charge from 5 years 3
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months to 4 years 9 months and then factoring in the one-third discount.
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G
Sentencing D1 and D2 G
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11. D1 was the coxswain cum captain of the boat conveying 7
I South Asian males he knew not authorized to land in Hong Kong. He did I
so for a reward. The boat was unseaworthy. I take a starting point of 4
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years 9 months. A one-third discount is given for his guilty plea. There are
K no other mitigating factors. The sentence is 3 years 2 months for the 1 st K
Charge.
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M 12. For all the safety problems attending the boat, I take a starting M
point of 12 months for the 3rd Charge. A one-third discount is given for
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D1’s guilty plea. There are no other mitigating factors. The sentence is 8
O months. O
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13. On account of totality, I order 2 months out of the 8 months
Q for the 3rd Charge to be consecutive to the 3 years 2 months for the 1 st Q
Charge. His overall sentence is 3 years 4 months.
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S 14. There is nothing like the 3rd Charge brought against D2. He is S
not liable for any safety issues attending the boat either. In the 2nd Charge,
T T
he was an aider and abettor for an equal reward. The responsibilities he
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B discharged were equally important compared to D1. He and D1 worked B
for a boss. He was equally, if not more, culpable compared to D1. I
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likewise take 4 years and 9 months as the starting for the 2 nd Charge. A
D one-third discount is given for his guilty plea. There are no other D
mitigating factors. His sentence is 3 years 2 months.
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F F
(E. Yip)
G G
District Judge
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